Alesius v. Good Samaritan Hospital Medical & Dialysis Center
806 N.Y.S.2d 635
N.Y. App. Div.
2005
Check Treatment

KEITH ALESIUS et al., Plaintiffs, v GOOD SAMARITAN HOSPITAL MEDICAL AND DIALYSIS CENTER et al., Defendants and Third-Party Plaintiffs-Appellants. H.T. STEEL ERECTORS, INC., Third-Party Defendant-Respondent.

Appellate Division of the Supreme Court of New York, Second Department

October 17, 2005

806 N.Y.S.2d 635

Schmidt, J.P., S. Miller, Santucci and Spolzino, JJ.

In an action to recover damages for personal injuries, etc., the defendants third-party plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Peck, J.), dated July 2, 2004, as granted the cross motion of the third-party defendant for summary judgment dismissing the third-party cause of action for contractual indemnification.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the cross motion is denied, and the third-party cause of action for contractual indemnification is reinstated.

Pursuant to General Obligations Law § 5-322.1, a clause in a construction contract which purports to indemnify a party for its own negligence is void (see

;
;
), but the clause may nevertheless be enforced where the party to be indemnified is found to be free of any negligence (see
;
). The third-party defendant failed to establish its entitlement to judgment as a matter of law, and its cross motion for summary judgment dismissing the third-party cause of action for contractual indemnification should have been denied (see
;
;
; see also
). There are triable issues of fact as to whether the defendant third-party-plaintiff was negligent and, if so, whether its negligence was the proximate cause of the plaintiff‘s alleged injuries, based upon the conflicting deposition testimony regarding the condition of the floor of the job site at the time of the accident.

Schmidt, J.P., S. Miller, Santucci and Spolzino, JJ., concur.